Legal Eagle: Is Nutella false advertising? ...

...Or are Americans just idiots?

Nutella is my guilty pleasure, I don't enjoy eating chocolate bars or ice cream, I'm normally a savoury cheese board kind of girl or a citrus tangy cheese cake for after dinner. However, I have been known to eat Nutella straight from the jar on a spoon. Just one spoon, perhaps two, when I'm needing a sugar hit. I'm no fool, I'm fully aware it's about 100 calories a table spoon. After all, it is a chocolate spread, spread implies "fat" like butter or margarine, and everyone knows chocolate is unhealthy, only a complete moron would genuinely believe consumption of nutella can be part of a healthy diet. 

Only one mother did. An American mother of course, this is the sort of story that would only happen in the jurisdiction of the US of A. The Californian "Mom" (or Mum as we correctly say in this country) Athena Hohenberg is genuinely suing Nutella for misleading advertising that led her to believe Nutella was a healthy breakfast option for her daughter. 

Nutella advertises its product as being enriched in Hazelnuts and wholegrain. Which is true, it's just also full of saturated fats and sugars. The crazy mother has kindly asked that any monetary judgment be divided among "all persons who purchased on or after January 2000 one or more Nutella products in the United States for their own or household use." Assuming this case isn't laughed out of court... but then again, this is America we're talking about. 

We have to be serious, what are the boundaries between free speech and false advertising? The most prominent case illustrating this question is Nike v Kasky. Any law or business student that has studied Corporate Governance will be familiar with this case. Acting on behalf of the public, Kasky filed a lawsuit in California regarding Nike newspaper advertisements. The plaintiff brought this action seeking monetary and injunctive relief in the hope to curb false advertising and unfair competition. Plaintiff alleged that defendant corporation (Nike)  made false statements of fact about its labour practices and its working conditions in it's factories,  this was to induce consumers to continue buying products after public complaints about Nike's corporate responsibility. Kasky claimed that these representations by Nike constituted false advertising. Nike responded that the representations were merely an expression of opinion; they were not intended to be an advertisement and therefore, were entitled to First Amendment protection (protection of free speech). Although the local court agreed with Nike's lawyers, the California Supreme Court overturned this ruling, claiming that the corporation's communications were commercial speech and therefore subject to false advertising laws. Although there was going to be a review of the case, the parties settled out of court before any accuracy of Nike's statements was found or proven, subsequently leaving the California Supreme Court's denial of Nike's immunity claim as precedent. This basically illustrates the flummoxing and delicate line between a right to free speech, and false advertisement.

The point I’m trying to make here, is that if we are to claim Nutella is falsely advertising, then surely all advertisements must be reviewed? Are Mcdonald’s guilty of false advertisement? Do we really believe that their “whole chicken breast burgers” are good for our children? Or that just because a cheese string contains a “whole glass of milk” it is a super healthy snack for our children? It is after all cheese. Should we sue Cravendale for claiming milk is a good source of calcium but neglecting to mention in the advert the calorific content of it’s full fat milk? Surely this contradicts the point of advertising, the purpose of which is to highlight to good points to consumers? Not to manifest the negatives along side. So should we sue every company that has ever advertised for “stretching the truth” a little, or do companies have the right to assume their consumers have a little common sense? You as an adult consumer have the responsibility to use your own brain when shopping.

To conclude, Athena has no leg to stand on. Yes Nutella advertises itself as rich in calcium and whole grain, because it is. The company has no obligation to broadcast every nutritional fact on it’s commercials. KFC don’t should about their calorific content on the adverts yet they do rave about it being “fresh, on the bone, chicken.” What the company IS obliged to do, is print all nutritional information on its label, which is does. If you were to turn the jar over and read the label, you’d clearly see the calorie, sugar and saturated fat content. Then it’s up to you to make an informed decision regarding it’s purchase. I say the plaintiff has no leg to stand on, but we have to remember this case is being tried in America, stranger things have happened over seas. Only in America would someone claim to be “shocked” at the high fat and sugar content of a chocolate spread. Athena, I’m sorry, but Nutella isn’t the reason your daughter is fat, it’s because you are too lazy to read the label and have no common sense.